A Dallas County jury may soon get to decide if Cowboys head coach Barry Switzer is an insensitive buffoon who thinks all strapping young black men play football.
But the verdict is already in on Switzer's alcohol consumption: He prefers Cabernet with dinner, because Scotch makes the Bootlegger's Boy bleed.
The truth wasn't easy to obtain.
On June 24, 1996, Switzer spent more than two hours talking about his urinary tract, drinking preferences, and locker-room lingo with rookie civil litigator Eduardo Lucio.
At the time, Lucio was taking Switzer's sworn deposition as part of a civil lawsuit that two of Lucio's clients--Randy Mayes and Stephan Bolton--filed against Switzer in 1995. The two Austin men claim that a drunken Switzer physically and verbally assaulted them on October 22, 1994, during a confrontation inside the lobby of the courtly Melrose Hotel in Oak Lawn.
The incident, which didn't result in any arrests or criminal charges, has snowballed into a lawsuit that is set for jury trial this week before Dallas County Judge Jay Patterson.
According to police reports and court filings, the basic facts of the case are these:
Bolton and Mayes were leaving the hotel just after midnight when they crossed paths with Switzer, who was with friends Bill and Sharon Pyeatt, and Becky Buwick. Switzer, being a sociable kind of guy, couldn't resist the opportunity to yuck it up with a couple of strangers.
After crouching into a "football stance," Switzer put his hand on Mayes' left shoulder, clapped him in the stomach, and said, "You big son of a bitch. You look like Alvin Harper. You probably could play for me."
Or at least that's what Switzer remembers. Mayes told police that Switzer "punched" him and called him a "black motherfucker." Switzer says he may have called Mayes a black motherfucker, but only later, after Bolton and Mayes threatened to sue.
Either way, Mayes and Bolton were offended and called the police, who arrived and attempted to convince Switzer to apologize, according to a police report. In his attempt to explain to the officers what happened, Switzer re-enacted the incident and, not surprisingly, reoffended Mayes and Bolton. Bolton, who noted that he was working for the Ann Richards gubernatorial campaign, said he and Mayes were going to sue Switzer, who replied, "I'm gonna have your fucking job."
Everyone left in a huff, with Switzer muttering something about "as much as I do for young people," and Bolton and Mayes wondering where a white guy in Switzer's position gets off acting that way.
The case could easily qualify as a textbook example for law students on when not to sue a celebrity, especially if the point is to make money.
In January, Judge Patterson ordered Bolton and Mayes to pay a combined $3,750 in costs for abusing the judicial process, particularly the "discovery period" in which they, in part, did not identify their fact witnesses in a timely manner. Bolton and Mayes have ignored the judge's order and, even though sheriff's deputies may soon seize their personal property for payment, are still proceeding with their case.
"It's really become a matter of principle for them, more than anything else. They feel they've been abused by the system," says Lucio, who adds that his clients believe they are victims of a racist assault, and they want to prove their point.
Bolton and Mayes, who were not injured during the confrontation, are nonetheless asking for punitive damages for the physical and mental suffering they've supposedly endured for the last two years. (Switzer attorney Brad Gahm calls the lawsuit a "ridiculous" attempt to soak a celebrity for money. Bolton and Mayes could not be reached for comment.)
Switzer may not be the "world's leading nonracist," as he has claimed in the past. But Lucio is also quickly proving that he's no Racehorse Haynes.
While the lawsuit portends little in the way of groundbreaking legal doctrine, there is something to be said for its entertainment value. Most notably, Switzer was forced to submit to questioning--under oath--by Lucio during the discovery process.
Excerpts from the deposition, taken in June, tell us more than we might want to know about Switzer.
Early in the deposition, Lucio attempted to establish how much Switzer had to drink that fateful night at the Melrose Hotel:
Lucio: ...on this Friday, October 21, 1994, did you have any drinks when you first arrived at your apartment and Ms. Becky Buwick was there?
Lucio: Do you keep alcohol or liquor in your house?
Switzer: In that apartment? No.
Lucio: No? No beer or anything in the refrigerator?
Switzer: No, I don't drink beer.
Lucio: You don't drink beer?
Having established that Switzer does not drink beer, Lucio jumped ahead to the point in the evening when Switzer and his friends arrived at the Melrose Hotel's Library Bar. (Law students take note: Lucio is the attorney and Switzer is the jock.)
Lucio: How many drinks did you have inside the Library bar?
Switzer: One or two at the most. I drink wine.
Lucio: OK. What kind of drinks did you have?
Switzer: I ordered wine, Cabernet sauvignon, red wine.
Lucio: Any other drinks?
Switzer: I drink an after-dinner drink.
Lucio: OK. I believe in your interrogatories you stated that you had--
Lucio: --two cocktails and a Bailey's. Is that in addition to the wine?
Switzer: No. What I meant, the drink "cocktails," I refer cocktails, wine, whatever it might be.
Lucio: OK. So by "cocktails," is it something else, or you had one or two glasses of wine, or one or two glasses of cocktails? Or can you explain that to me?
Switzer: I had two drinks, and I refer to cocktails--as wine being cocktails.
Lucio: So it was actually wine?
Switzer: That's what I drink, yeah. I don't drink the others because it's--I have a problem with it. My stomach might bleed, ulcer.
Lucio: You have a problem with what? What causes the problems with your ulcer?
Switzer: If I were to drink a light Scotch, I bleed. Urinary tract--I mean my tract, I just can't do it. I pass blood.
If Lucio is able to convince a jury that Switzer was drunk that evening, ex-Sooner players most certainly will be disappointed to learn that their coach has turned into a lightweight wine snob. However, if Lucio is able to convince a jury to find in Bolton and Mayes' favor, Switzer's prediction that "there are a lot of 'knee-jerk' liberal types out there who are going to try to label me as a racist" will prove true.
Lucio probed Switzer's sensitivity to the racism allegations during various portions of the deposition:
Lucio: Mr. Switzer, did you call Mr. Mayes at any time a black motherfucker?
Switzer: I called him a motherfucker. I might have called him a black motherfucker after he incited me and threatened me, sneered and pointed at me, and said he was going to sue me.
Lucio: Did it offend you that he called you a racist?
Switzer: Yes, it offended me very much.
Lucio: Do you think comments about racism are offensive, or comments about race can be found offensive?
Switzer: He called me a racist and he definitely offended me, because that's the furthest thing from the truth.
Lucio: You stated earlier you might have said "black motherfucker"?
Lucio: Do you think that could be found offensive? That's a comment to race.
Switzer: Well, it--as I told you earlier, it depends on the individual. He could call me a white motherfucker and it wouldn't bother me.
Lucio: But if they call you a racist, it bothers you?
Lucio: Do you consider moving your hand and touching somebody and having your hand, I guess, go at a faster than normal rate of speed to be offensive outside--
Switzer: I don't consider putting my hand on someone's arm and breaking down and saying, "You big son of a bitch. You ought to play for me. You look like Alvin Harper." To me that was a friendly gesture--a gesture that would open up conversations, which it always has in the past, and usually ended up going and buying a beer for each other, or asking me for tickets, or becoming a friendly evening together. That certainly wasn't to me described as assault to anyone.
Lucio: On those other occasions when you've approached people in this manner, I don't know whether I've asked you this or not, but did you also refer to them as a son of a bitch?
Switzer Attorney Brad Gahm: You did ask that before.
Switzer: Excuse me? I didn't hear my attorney's comment.
Gahm: He asked you that before. You said yes, probably did. It was locker-room type talk.
Lucio: I take it locker-room talk involves a lot of swearing or cuss words or--is that correct?
Switzer: Athletes are--the locker room is a little bit different than the board room.
Lucio: In what ways?
Gahm: Different from what? A newsroom?
Lucio: No. I'm trying to figure out--there's been a distinction made as to locker-room talk.
Switzer: You ever play football?
Lucio: No, sir.
Switzer: Then it's very difficult to explain it to you. I don't know whether--the other two gentlemen obviously hadn't either, so...
Lucio: So it's difficult to...
Switzer: Every day it's, you know, they talk among themselves like that--the coaches, the players. It's camaraderie. It's just part of the genre. It's part of the locker room.
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Gahm: It might shock people there's even profanity in law firms.
Switzer: Oh, it's amazing. If you want to take him out to the complex and stand behind our doors and listen to what goes on while they dress to go to practice...
After a recess, during which time Gahm undoubtedly advised his client that taking Lucio into the Cowboys locker room may not make matters any better, Lucio finally stumbled into Switzer-land.
Lucio: Do you ever find your behavior to be inappropriate outside of the football context?
Switzer: No, not at all. I think people enjoy being around me. People enjoy and are flattered sometimes when I greet people that way. I'm a touching, feeling person.